Kirkham v Kirkham

[2011] QCATA 262

CITATION: Kirkham v Kirkham [2011] QCATA 262

PARTIES:	Mr Ian Kirkham
v
Mr Robert Kirkham

APPLICATION NUMBER:            APL121-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   5 August 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS: 

MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where dispute about ownership of property – where dispute about whether a residential tenancy agreement – whether notice to remedy breach correct – whether notice to leave correct

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1
Coleman v Dolman [2011] QCATA 47

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. The Kirkhams are father and son.  Ian Kirkham owns a unit.  Robert Kirkham lives in that unit.  Ian Kirkham has filed a number of applications to force Robert Kirkham to vacate the unit.  The most recent application was heard on 21 March 2011.  Once again, Ian Kirkham was not successful.

1. Ian Kirkham has appealed the learned Member’s decision on these grounds:

a)    The evidence establishes that he owns the unit.

b)    Robert Kirkham paid rent from 2002 to 2005 but then stopped paying rent.

c)    Rent is in arrears and Ian Kirkham issued a notice to remedy breach.

d)    Robert Kirkham failed to remedy the breach so Ian Kirkham issued a notice to leave.

e)    Robert Kirkham’s failure to leave is causing Ian Kirkham financial hardship and distress.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. It is apparent from the application for leave to appeal that Ian Kirkham is frustrated by the Tribunal’s decision and that Robert Kirkham’s continued occupation is causing him considerable distress.  Those factors, in themselves are not grounds for leave to appeal.

1. A residential tenancy agreement does not have to be in writing[1] but the Tribunal does have to be informed about the essential terms of the agreement.  The difficulty that the learned Member faced in the hearing is that Robert Kirkham denied that he had an obligation to pay rent and Ian Kirkham could not point to any evidence that otherwise persuaded the learned Member to the contrary.  That lack of evidence led the learned Member to conclude that the notice to remedy breach was defective.  If the notice to remedy breach was defective, then, necessarily, the notice to leave was also defective.

   [1]            See Coleman v Dolman [2011] QCATA 47.

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2] 

   [2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[3]  As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[4]

[3]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[4]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. There is nothing in the transcript or material that persuades me that the learned Member should have taken a different view of the facts.

1. I understand that Ian Kirkham suffers significant financial hardship and that he has applied to the Tribunal on a number of occasions to get Robert Kirkham removed from the property.  His lack of success to date does not mean that it is impossible but Ian Kirkham must ensure that his notices are framed correctly and he complies with the requirements of the Residential Tenancies and Rooming Accommodation Act 2008 if he wants the Tribunal’s assistance.  As he is not prevented from bringing another application, Ian Kirkham’s present circumstances will not result in a substantial injustice if leave is not granted.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.